European Court annuls EU-Moroccan fisheries and tariff agreements that include Western Sahara

The General Court of the European Union has ruled, in two judgments, on the legality of the fisheries and agricultural agreements between the EU and Morocco that include Western Sahara. It has ruled in favour of the Polisario Front, considering them illegal for not having properly consulted the Saharawi population. The Luxembourg-based court leaves a margin of two months in which the agreements can continue to be applied, but if the EU appeals, the agreements will remain in force until the matter is finally resolved by the EU Court of Justice.

The sentences also come at a time when the Ceuta border crisis is still hanging on and when Madrid and Rabat are in a process of diplomatic recomposition after the departure of Arancha González Laya as head of the Spanish Foreign Ministry. And a week after the judge investigating the entry into Spain of the leader of the Polisario Front, Brahim Ghali, last May summoned González Laya, who will chair the new group of wise men created by the European Commission to “identify innovative solutions” with which to modernise the customs union, to testify as an investigator.

The agreements challenged in the European Court of Justice are the result of trade negotiations between the EU and Morocco on two agreements. On the one hand, it was a question of amending the Protocols to the Euro-Mediterranean Association Agreement, on the import into the EU of agricultural products originating in Morocco and on the definition of the concept of “originating products”, in order to extend to products from Western Sahara exported under the control of the Moroccan authorities the tariff preferences granted to products of Moroccan origin exported to the Union.

In addition, there was a desire to amend the Fisheries Agreement between the European Community and Morocco and, in particular, to include in the scope of this agreement the waters adjacent to the territory of Western Sahara.

The Polisario Front called for the annulment of the two decisions in 2019, arguing that the agreements apply to Western Sahara, provide for the exploitation of its natural resources and favour Morocco’s annexationist policy. over the said territory. Furthermore, it argues that the second of these agreements also applies to the waters adjacent to the said territory. In particular, the Frente Polisario argued that the agreements are not in conformity with the case law of the Court of Justice, which in its view excludes such territorial application.

The Luxembourg Court declared in December 2016 that the agreements between the EU and the Kingdom of Morocco cannot include Western Sahara as a non-self-governing territory. This fact forced both parties to renew their fisheries and agricultural pacts so that it could include food products and fish catches from the former Spanish colony.

In contrast, the European Commission and EU governments considered the agreements to be valid because, according to them, the local population has been consulted and, in the opinion of the EU institutions, they will have a positive impact on the economy.

And the EU’s General Court, for its part, has annulled the contested decisions in two rulings – which can be appealed before the higher court, the CJEU – deciding, however, that their effects should be maintained for a certain period of time, “since their annulment with immediate effect could have serious consequences for the Union’s external action and call into question the legal certainty of the international commitments it has undertaken”.

The General Court considers that, in so far as the agreements in question expressly apply to Western Sahara and concern the people of that territory, they required their consent to be obtained. It thus concludes that the contested decisions have a direct effect on the legal position of the Polisario Front as the representative of that people and as a party to the process of self-determination of that territory. Finally, the General Court underlines that, “as regards their territorial application, the implementation of the agreements at issue is purely automatic and leaves no discretion to those to whom they are addressed”.

In a joint declaration, the EU High Representative for Foreign Policy, Josep Borrell, and the Moroccan Minister for Foreign Affairs, Nasser Bourita, affirm without mentioning Western Sahara: “We will take the necessary measures to ensure the legal framework which guarantees the continuation and stability of commercial relations between the European Union and the Kingdom of Morocco. We will continue to work to develop the multiple dimensions of this strategic partnership, in the same spirit of mobilisation, coherence and solidarity”.

As regards the question whether the Council (the EU governments) failed to comply with the Court’s case-law on the rules of international law applicable to the agreements at issue, the General Court states that, in the Council v Polisario Front judgment, “the Court inferred from the principle of self-determination and the principle of the relative effect of treaties clear, precise and unconditional obligations which must govern relations between the Union and Morocco as regards Western Sahara: on the one hand, respect for its separate and distinct status and, on the other hand, the obligation to ensure the consent of its people in the event of implementation of the Association Agreement on that territory”.

In this respect, the General Court “accepts the argument of the Polisario Front that the requirement of the consent of the people of Western Sahara, as a third party to the agreements in question, has not been respected within the meaning of the principle of the relative effect of the treaties. The purpose of the agreements in question is not to grant rights to that people, but to impose obligations on them”.

In that regard, the Luxembourg-based court considers that “it cannot be considered that the steps taken by the Union authorities before the conclusion of the agreements at issue made it possible to obtain the consent of the people of Western Sahara to those agreements, in accordance with the principle of the relative effect of the treaties, as interpreted by the Court of Justice”.

The General Court states in that regard that the discretion of the institutions in the context of external relations did not allow them, in the present case, to decide whether or not they could comply with that requirement.

In particular, the General Court observes, first of all, that, having regard to the legal scope of the concept of ‘people’ in international law and the concept of ‘consent’, the ‘consultations’ with the ‘populations concerned’ organised by the institutions could not have led to the expression of the consent of the people of Western Sahara.

This approach made it possible, at most, to obtain the opinion of the parties concerned, without this opinion conditioning the validity of the disputed agreements”.The court states that “the various elements relating to the particular situation of Western Sahara invoked by the Council do not show that it was impossible in practice to obtain the consent of the people of Western Sahara to the disputed agreements, as a third party to them”.

Finally, the General Court held that “the Council did not take sufficient account of all the relevant factors relating to the situation in Western Sahara and wrongly considered that it enjoyed a margin of discretion in deciding whether to comply with that requirement”.

“They deny the existence of the Saharawi people”.

The Polisario asked the Luxembourg-based court to assess the legality of the agreements and has based its position on a dozen grounds, the first of which points out that the EU and Morocco lack the competence to negotiate international agreements that are applicable to Western Sahara on behalf of the population concerned.

On the other hand, it denounces the fact that before concluding the agreements, the respect of fundamental rights and international humanitarian law has not been evaluated, as well as the fact that “they deny the existence of the Saharawi people as a subject of law, replacing it with the expression ‘affected populations'”.

The Polisario also argues that the agricultural and fishing agreements “violate the right of the Saharawi people to freely dispose of their natural resources” and organise “without their consent” the export of their products to the EU and the exploitation of their fishing resources by European vessels.

According to Europa Press, 91% of the catches included in the fisheries pact with Morocco come from Saharawi waters. In exchange for access to these waters, the EU pays Morocco an annual average of 52 million euros each of the four years of the agreement, of which approximately 12 million must be paid by European shipowners. In return, the African country allows 128 European vessels, including 92 Spanish vessels, to fish in its waters and those of Western Sahara. In particular, 22 Spanish small-scale pelagic purse seiners in the north, 25 bottom longliners also in the north, ten small-scale fishing vessels in the south, 12 demersal fishing vessels and 23 pole-and-line vessels for tuna catches.

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